Articles Posted in Domestic Violence

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Two cases of similar nature which involved children were brought before the court for resolution.

The first case is a child custody proceeding pursuant to Family Court Act article 6 wherein the mother appeals from an order of the Family Court, Kings County dated 27 May 2010, which, after a hearing, inter alia, granted the father’s petition for sole custody of the child and denied her cross petition for sole custody of the child.

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The CSS filed the instant proceeding on 9 April 1991 alleging that respondent LM sexually abused his sons, MM and DM, ages 10 and 8, respectively, by fondling their genitals and buttocks in violation of Penal Law, § 130.65. CSS also alleges that the children are psychologically and emotionally impaired as a result of the pattern of domestic violence witnessed in the parental household. The petitioner additionally asserts a claim of educational neglect claiming that the children are excessively absent and do not attend school regularly.

The court finds that the allegations of sexual abuse have not been proven by the quantum of proof necessary under Article 10. In order to sustain a finding of sexual abuse, this court must make a threshold finding that the father’s acts were done for the purpose of sexual

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This is a proceeding wherein the court is called upon to determine whether the attorney for the defendant’s application to be relieved as attorney of record should be granted, if the defendant’s applications brought pro se while still represented by counsel are properly before the court, whether or not the defendant is entitled to a 30 day stay of all proceedings in the event counsel is relieved pursuant to CPLR 321(c), whether or not the defendant is entitled to a second court appointed counsel pursuant to Judiciary Law section 35(8)(b) on the issues of custody, visitation and an order of protection, whether or not the defendant should have the benefit of a court assigned interpreter and the sua sponte sealing of photographs of the child’s genitalia and buttocks which were annexed exhibits to defendant’s order to show cause.

GG, an attorney of her own choosing, presently represents the defendant. Defendant’s counsel moved by order to show caused dated 5 November 2010, to be relieved. GG seeks to be relieved as the attorney of record based upon an irretrievable breakdown in the attorney client relationship. The defendant submits in her most recent application disparaging statements about GG and his representation of her. In open court, on 17 November 2010, defendant stated she wished to discharge GG and asked for the appointment of counsel pursuant to Judiciary Law section 35(8)(b).

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This is a contested matrimonial action wherein the plaintiff, the husband, moves by order to show cause dated 6 January 2010 for the following relief: an order directing the return of the parties’ two children, A, age 7 and M, age 4, to New York State; an order awarding the husband temporary custody of the subject children; and, an order awarding the defendant, the wife, reasonable visitation with the minor children within the State of New York.

On the other hand, the wife opposes the husband’s application and cross moves by order to show cause dated 9 April 2010 for the following relief: an order dismissing the husband’s application on the basis that New York is not the home state pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act and for permission for the wife to commence a custody proceeding in California; and, an order directing the husband to pay all costs associated with Court appearances, including but not limited to transportation costs including airfare, car rentals, hotel costs, and daycare.

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In January 2007, defendant JF was charged by misdemeanor information filed in New York City Criminal Court, Kings County, with multiple counts of aggravated harassment in the second degree after he contacted his former paramour by telephone 62 times in one evening and repeatedly threatened her with physical harm. JF and the complainant had been involved in multiple prior Family Court cases regarding disputes about their two children. After his arraignment in New York City Criminal Court, the case was transferred to the IDV Part in Kings County Supreme Court where a nonjury trial was conducted. He was convicted of three counts of attempted aggravated harassment in the second degree and sentenced to concurrent terms of one year’s probation. He was also directed to participate in a variety of domestic violence accountability and other programs. He raised no objection in the trial court to the transfer of his case.

In his appeal to the Appellate Division, Second Department, however, he argued that the IDV Part-an arm of Supreme Court-lacked the authority to exercise subject matter jurisdiction over his misdemeanor case because it was prosecuted by information rather than an indictment or superior court information issued after waiver of indictment. Defendant also contended that the Chief Judge and Chief Administrative Judge exceeded the scope of their authority when they issued the IDV directives. In addition, he sought reversal based on an asserted evidentiary error. The Second Department unanimously rejected defendant’s arguments and affirmed his conviction. A Justice of that court granted defendant leave to appeal.

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Petitioner is charged with a criminal family offense (a misdemeanor and a violation) involving his two preteen sons. At the arraignment, the judge issued a temporary stay away order of protection (TOP), pursuant to Criminal Procedure Law §530.12. The TOP had an expiration date. There is no indication in the record that either the Judge directed a TOP hearing or that one was requested by petitioner or his counsel at that time.

A Kings County Family lawyer said that on that return date, petitioner and his counsel appeared and while, apparently, certain conversations were held off-the-record, including the presentment of a tape recording of the event to the Assistant District Attorney the record is devoid of any request by petitioner’s counsel for a TOP hearing before the assigned judge. In fact, the transcript reveals that upon the presentment of an amended order of protection by the Assistant District Attorney, an opportunity to spread the matter on the record was offered to petitioner’s counsel but, aside from a general objection, the record fails to disclose that a request for a TOP hearing was formally made.

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In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County, which, after a hearing, granted the father’s petition for sole custody of the subject child.

The court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child. “Factors to be considered in determining the child’s best interests include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child’s relationship with the other parent”.

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The defendant is charged in a fifteen count indictment with the crimes of Criminal Contempt in the First Degree (3 counts), Criminal Contempt in the Second Degree (2 counts), Harassment in the Second Degree (2 counts), Assault in the Third Degree (2 counts), Menacing in the Second Degree, Criminal Mischief in the Fourth Degree (2 counts), Assault in the Second Degree, and Aggravated Criminal Contempt (2 counts).

A Kings County Criminal lawyer said that the defendant moves for an inspection of the Grand Jury minutes and for a dismissal of the indictment or a reduction of the charges on the ground of legal insufficiency of the evidence adduced before the Grand Jury. The defendant’s motion to inspect the Grand Jury minutes is granted. The motion to dismiss the indictment is granted with respect to one count of Criminal Contempt in the First Degree, one count of Criminal Contempt in the Second Degree, and two counts of Criminal Mischief in the Fourth Degree but denied with respect to the other eleven counts.

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A few examples suffice. The defendant has no criminal record. Accordingly, that fact that a convicted felon cannot obtain a firearms license in New York would not have disqualified the defendant had he applied. Similarly unpersuasive is the defendant’s claim that the licensing scheme is overly restrictive, because the statutory definition of serious offense in PL, a conviction for which is disqualifying, includes not only an arbitrary selection of misdemeanors but violations such as trespass, disorderly conduct and loitering. Federal law already prohibits those convicted of a misdemeanor crime of domestic violence from possessing firearms. Additionally, the requirement that a gun license applicants be of good moral character would appear to be one of long standing, as most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm unvirtuous citizens.

The defendant’s claim that the availability of a firearms license is under the complete control and virtually unreviewable discretion of the New York City Police Commissioner is wrong. The statute provides an unsuccessful applicant with an administrative appeal process, and that decision can be challenged in court in a CPLR proceeding. As the People state, if an applicant is unsatisfied with the judgment of Supreme Court, he/she is entitled, as of right, to appeal the final judgment of that court to the Appellate Division, whose order is appealable, by permission, to the Court of Appeals. The court’s role in such an Article 78 proceeding is to ensure that the administrative decision denying a petitioner a firearms license was neither arbitrary and capricious nor an abuse of discretion. Finally, as the People correctly point out, the cases that defendant cites for his claim that the police have a history of inserting their own requirements into the licensing regulations all reversed administrative denials of firearms licenses where the officials inserted their own requirements. Clearly then, contrary to defendant’s claim, the discretion of a pistol licensing officer to deny an application is not unfettered, and the officials involved – including the NYPD licensing division – are bound by standards reviewable in a court of law.

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In 1989, a couple met. The man is employed as a bus operator and the woman is a certified emergency medical technician. The woman had two sons from her previous relation. The man therefore is not the man of the two children. However, he has played a significant role in raising the woman’s eldest child. The couple met when the eldest child was about ten months old, and moved in together at the woman’s parents’ house a few months thereafter.

The woman alleges that the criminal incidents of physical abuse between them began at some point in 1995. She testified that the man’s temper is changing from time to time. She further testified that she was scared of the man because he’s always been abusive towards her. Assault was in play.

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